Opinion
No. 09-10077 Summary Calendar.
October 22, 2009.
Amanda R. Burch, U.S. Attorney's Office, Lubbock, TX, for Plaintiff-Appellee.
Jason Douglas Hawkins, Federal Public Defender's Office, Dallas, TX, David E. Sloan, Federal Public Defender's Office, Lubbock, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas, USDC No. 1:08-CR-49-1.
Before JOLLY, WIENER, and ELROD, Circuit Judges.
Jorge De La Luz-Antonio (De La Luz) pleaded guilty to transporting illegal aliens. The presentence report (PSR) set De La Luz's offense level at 18 pursuant to U.S.S.G. § 2L1.1(b)(6) based on a finding that "the offense involved intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person." De La Luz appeals the enhancement, asserting that the adjustment should not have been applied because the aliens had access to oxygen, were not exposed to extreme temperatures, and could exit the vehicle quickly if necessary. See United States v. Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 2006) (setting forth factors to be considered in applying this adjustment).
Because the facts related to this adjustment are not in dispute, we review de novo the legal question of the applicability of the adjustment. United States v. Solis-Garcia, 420 F.3d 511, 514 (5th Cir. 2005). According to the PSR and the addendum, De La Luz was transporting 11 illegal aliens in a minivan rated for seven passengers. See United States v. Mateo Garza, 541 F.3d 290, 294 (5th Cir. 2008) (indicating in dicta that a vehicle carrying four people more than its rating would "[p]robably" be considered "substantially more" than the rated capacity of the vehicle). Additionally, the rear seats of the vehicle had been removed, and the deputy sheriff who had stopped the vehicle identified five unsecured cinder blocks in the rear of the minivan, on which some of the aliens were sitting. The blocks could overturn or become projectiles in the event of an accident, which could cause injuries to an individual sitting on a cinder block or to others in the vehicle. See Zuniga-Amezquita, 468 F.3d at 890. Therefore, the aliens faced a greater "risk of injury . . . than that faced by an ordinary passenger, without a seatbelt." Id. In light of these aggravating factors, the district court's imposition of the enhancement is AFFIRMED.